Full and Final?

It seems that Te Tiriti settlements are never far from the political radar and the big story out today is the Government’s rejection of the draft deed of settlement prepared by Ngati Kahu because it did not provide for a full and final settlement.  I cannot criticise the position taken by Ngati Kahu – they are well within their rights to build a relationship with the Government on their own terms.  If that means leaving open the wounds of historical grievances then so be it.  What I am interested in that flows from this is what does this mean in terms of the contemporary Te Tiriti settlement process?  Is it working?  And what purpose are we actually trying to achieve through this process?

The Purpose of The Te Tiriti Settlement Process

It is that third question that I think has been poorly defined to date, even after two decades of reconciliation.  To my mind, Te Tiriti settlements serve three purposes:

• Acknowledging, and apologising, for the historical breaches of Te Tiriti by the Government;
• Compensating, if only partially, iwi and hapu, for the loss of economic progress as a result of past Governments breaching Te Tiriti; and
• Building a strong and enduring relationship between the iwi or hapu and the Government, in the spirit of Te Tiriti, to ensure that Te Tiriti is honoured into the future.

So if you accept those three principles as the starting point of Te Tiriti settlements then it follows that settlements entered in by iwi or hapu and the Government should be full and final settlements up until this point in time.  This process of reconciliation cannot be fully completed when issues of past grievances have not been fully dealt with.  Further, when past grievances are left unresolved, they muddy the waters of any contemporary issue.  Instead of addressing the issue at hand, both parties are locked into a constant re-litigation of past events.

Is The Settlement Process Working?

As I wrote a few weeks back, I believe that the dual Waitangi Tribunal and Te Tiriti Settlement negotiations is a good approach to be taking to resolve our very real historical grievances.  The system is far from ideal and one of the biggest criticisms I have of the approach of successive Governments is their policy of only negotiating with large natural groupings and effectively deciding who they engage with.  As was seen over on the East Coast last year, once the Government decides that it is negotiating with the iwi who hold mana whenua, they stubbornly refuse to recognise that other, smaller, hapu exist independently of the larger collective.  It is a situation that has been repeated time and time again – the most prominent being Ngati Whatua’s flawed claim over the entire Auckland isthmus.  Fortunately, in the case, the Waitangi Tribunal intervened and ensured that smaller hapu could take their claims to the Crown.

However, the current Waitangi Tribunal does appear to be shirking its duties at times.  And it is not me saying this, it is the Supreme Court.  In its recent decision of Haronga v Waitangi Tribunal, the Supreme Court held that the Waitangi Tribunal had failed to discharge its statutory functions correctly in hearing the claims of the Mangatu Incorporation to the Mangatu State Forest.  The Waitangi Tribunal is tasked with inquiring into Maori claims of historical breaches of Te Tiriti o Waitangi and great care needs to be taken by the Tribunal to ensure that it provides claimants with the opportunity to have their case heard.

The Impact of Ngati Kahu on the Settlement Process

Ultimately, the actions of Ngati Kahu will not change the current system to any large degree.  What it will do though, is lead to a greater discussion and analysis of the purpose of the entire system and that can only be a positive thing.  The more we, as a nation, understand why we are entering into settlements with iwi, the better chance we have of healing the wounds of the past.